Application of the EU CFR by National Courts in Purely Domestic Cases

2017 ◽  
Author(s):  
András Jakab
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Left Behind ◽  
National Courts ◽  
Domestic Courts ◽  
Local Courts ◽  
Domestic Level ◽  
The Eu

This chapter argues that the most promising way to conceptualize the values of European constitutionalism in a judicially enforceable manner is through a creative reinterpretation of Article 51(1) EU CFR. It asserts that in order to create a fully fledged value community which benefits all its citizens equally, the CFR should become fully applicable in every case in its own right—even in purely domestic cases in domestic courts and even in the absence of a systemic failure of fundamental rights protection at the domestic level. This would mean that judicial review would be introduced across Europe via the supremacy of EU law. This judicial review would be decentralized in the sense that local courts could exercise it, but its unified application would be ensured by the preliminary procedure. The EU could thus become a ‘community of fundamental rights’ with nobody left behind.

scholarly journals Judicial Review of Administrative Action at National Level under the EU Charter of Fundamental Rights and General Principles of EU Law

2020 ◽  
Vol 18 (1) ◽  
pp. 25-49
Author(s):  
Mihaela Vrabie
Keyword(s):  
Judicial Review ◽  
National Level ◽  
Fundamental Rights ◽  
Eu Law ◽  
Member States ◽  
National Courts ◽  
Charter Of Fundamental Rights ◽  
The Impact ◽  
Eu Fundamental Rights ◽  
The Eu

This article aims to determine when the national authorities have the obligation to comply with EU fundamental rights, in the framework of administrative procedures carried out in the EU Member States. It also aims to determine the legal remedies available at national level in the context of judicial review in case of violation, by the national authorities, of EU fundamental rights guaranteed by the Charter of Fundamental Rights of the EU or as general principles of EU law. To this end, this study explains the impact of the legally binding EU Charter on public administration of the Member States and the field of application of the EU Charter at national level. The article also deals with the distinction between EU fundamental rights as primary EU law guaranteed by the EU Charter and EU fundamental rights as general principles of EU law. With reference to the judicial remedies available to national courts, the study outlines the effects of EU law (primacy of EU law, direct effect, direct application) in relation to the EU fundamental rights and the measures that can be adopted by the national courts when the action of the national administrative authorities is not compatible with EU fundamental rights. Finally, the article presents the most important findings concerning judicial protection of EU fundamental rights at the national level, especially from the perspective of the right to an effective remedy and to a fair trial stipulated by Article 47 of the EU Charter.  

The Legislative Embedding of the Governance of EU Equality Law

2018 ◽  
pp. 144-200
Author(s):  
Elise Muir
Keyword(s):  
State Level ◽  
Fundamental Rights ◽  
Eu Law ◽  
Political Debate ◽  
Rights Protection ◽  
Governance Tools ◽  
Eu Policies ◽  
The Given ◽  
Eu Fundamental Rights ◽  
Domestic Level

Earlier chapters have warned against relying too heavily on a constitutional narrative to address the protection of fundamental rights in the EU. This indeed risks hindering political debate on fundamental rights at the European level. Chapter 5 sheds light on how certain features of EU law can in contrast be usefully exploited to support political debate and the development of a fundamental rights culture at the domestic level. One of the great added values of EU intervention in the field of fundamental rights protection lies in the procedural safeguards and governance tools available under EU law: they are remarkably advanced and sophisticated for a supranational organization seeking to combat fundamental rights violations. EU equality law and policy can in that sense be treated as a laboratory for the governance of fundamental rights steered at supranational level. Specialized watchdogs, such as equality bodies, may play a particularly interesting role. Furthermore, understanding specific EU policies as being intended to promote a fundamental right opens a vast area for comparative research across the given sectors of EU fundamental rights law, leading to a better grasp of how best to enhance the governance of these rights beyond state level. By way of experiment, this chapter explores the potential for legislative and jurisprudential cross-fertilization of the notion of independent fundamental rights guardians, such as equality bodies and data protection authorities, at the domestic level.

scholarly journals National Security Concerns as an Exception to EU Standards on Data Protection

2021 ◽  
Vol 4 (2) ◽  
pp. 86-91
Author(s):  
Araceli Turmo
Keyword(s):  
National Level ◽  
Significant Risk ◽  
Personal Data ◽  
Fundamental Rights ◽  
Public Security ◽  
Eu Law ◽  
National Courts ◽  
Conflicting Interests ◽  
Security Concerns ◽  
The Eu

Discussions on the appropriate fundamental rights standards in the EU and the need to take into account conflicting interests are increasingly being reframed as debates on the conflict between the primacy of EU law and the constitutional standards of the Member States. One example of this reframing is the French administrative supreme court’s decision following the ECJ judgment in La Quadrature du Net. The Conseil ruled that the EU standards set in that judgment must be reviewed, at the national level, with regard to a national understanding of security concerns and the requirements of the fight against terrorism. Thus, constitutional requirements related to public security may be relied upon to argue for a lower standard of protection of personal data than those which the ECJ requires. As this decision shows, the ability of corporations and Governments to rely on litigation before national courts to challenge the standard of protection set at the EU level creates a significant risk, not only for the uniformity of EU law, but also for the protection of the rights of individuals. 

scholarly journals An approach to today’s EU constitutionality control – understanding this EU inter-jurisdictional phenomenon in light of effective judicial protection

2019 ◽  
Vol 3 (2) ◽  
pp. 104-124
Author(s):  
Joana Covelo de Abreu
Keyword(s):  
National Level ◽  
Fundamental Rights ◽  
Control Mechanisms ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
Court Of Justice ◽  
Constitutional Level ◽  
Judicial Protection ◽  
The Eu

Under today’s European constitutional demands, effective judicial protection sets the tone concerning potential jurisdictional instruments able to act as constitutionality control mechanisms. Inter-jurisdictionality stands for different and complementary jurisdictional systems living togetherin the same space and it aims to understand how their reflexive interactions can be maintained to promote effective judicial protection. Both the infringement procedure and the preliminary ruling act as constitutional controls. The first allows the Court of Justice of the European Union (CJEU) to evaluate the incompatibility of national solutions/omissions with EU law but, to meet its full effectiveness, widening legitimate parties needs to be considered as well. Also, validity preliminary rulings act as a constitutional control in proceedings relating to individuals – national judges should be aware of their referring obligations to the CJEU. There are voices amongst European academia that advocate a new constitutional procedure to promote fundamental rights’ protection. However, the main formulas highlighted rely on solutions tested on the national level which can compromise their efficacy. We perceive an inter-jurisdictional paradigm as the proper approach since it will allowthe promotion of effective judicial protection at a constitutional level as a new EU dogmatically thought phenomenon. This is to ensure judicial integration can be perceived as a reality, engaged in pursuing the future of the EU.

Administrative Procedure and Judicial Review in the European Union

2021 ◽  
pp. 47-49
Author(s):  
Matteo Gnes
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Eu Law ◽  
The European Union ◽  
Administrative Procedure ◽  
Administrative Action ◽  
National Courts ◽  
The Common ◽  
Procedural Requirement ◽  
The Eu

This chapter assesses administrative procedure and judicial review in the European Union. The requirement of judicial oversight of administrative action, which results from the common constitutional traditions of the Member States of the EU, is a general principle of EU law, and it is applicable both to proceedings before the Court of justice and before national courts, when EU law is invoked before them. The EU courts carry out a generalized review on any binding acts. Although there are certain differences between acts that may be challenged according to the different remedies provided by EU law, in order to be challengeable, the acts must fulfil several conditions. The most important are: they must be binding and produce legal effects, be definitive and be taken by EU institutions in the exercise of their competencies. Article 263 TFEU provides that the acts of EU institutions may be annulled on grounds of 'lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers'. Acts or failure to act may give rise to the liability of EU institutions.

The Competences of the Union

2018 ◽  
Author(s):  
Theodore Konstadinides
Keyword(s):  
Fundamental Rights ◽  
Active Part ◽  
Eu Law ◽  
Legal Systems ◽  
Member States ◽  
Rights Protection ◽  
Salient Features ◽  
The Impact ◽  
Vertical Level ◽  
The Eu

The object of this chapter is to examine the way in which competences are designed and delineated in EU law at the vertical level between the EU and the Member States and discuss their salient features. Over the years, EU competences have expanded, although not as meteorically as one may think. To alleviate concerns among Member States about the impact of EU competence enlargement upon national legal systems, a number of principles were designed to limit the powers of the EU. Having said that, there is hardly today an area of regulation in which the EU does not play an active part—from trade and energy to sport and fundamental rights protection.

9. Human rights in the EU

2017 ◽  
Author(s):  
Elspeth Berry ◽  
Matthew J. Homewood ◽  
Barbara Bogusz
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Eu Law ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Charter Of Fundamental Rights ◽  
History Of ◽  
Complete Series ◽  
Explanatory Text ◽  
The Eu

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter begins with a brief history of human rights protection in Europe, including the separate role of the Council of Europe and the ECHR, as well as that of the EU and EU law. It then discusses the development of human rights protection by the EU; the need for human rights protection against the EU and its Member States; the Charter of Fundamental Rights of the EU; the enforcement of human rights in EU law; and the possibility of EU accession to the ECHR.

Composing Europe’s Fundamental Rights Area: A Case for Discursive Pluralism

2015 ◽  
Vol 17 ◽  
pp. 210-246
Author(s):  
Louise HALLESKOV STORGAARD
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
Normative Basis ◽  
The Relationship ◽  
The Eu

AbstractThis article offers a perspective on how the objective of a strong and coherent European protection standard pursued by the fundamental rights amendments of the Lisbon Treaty can be achieved, as it proposes a discursive pluralistic framework to understand and guide the relationship between the EU Court of Justice and the European Court of Human Rights. It is argued that this framework – which is suggested as an alternative to the EU law approach to the Strasbourg system applied by the CJEU in Opinion 2/13 and its Charter-based case law – has a firm doctrinal, case law and normative basis. The article ends by addressing three of the most pertinent challenges to European fundamental rights protection through the prism of the proposed framework.

scholarly journals The Relationship Between the Charter and General Principles: Looking Back and Looking Forward

2020 ◽  
pp. 1-25
Author(s):  
Emily HANCOX
Keyword(s):  
European Union ◽  
Case Law ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
Transformative Potential ◽  
The Relationship ◽  
The Eu

Abstract Article 6 Treaty on European Union sets out two sources of fundamental rights in the EU—the Charter and the general principles of EU law—without specifying a hierarchy between them. Even though the Charter became binding over a decade ago, the Court of Justice of the European Union (‘CJEU’) is yet to clarify unequivocally how these two sources interact. In this article I argue based upon the relevant legal framework that the Charter ought to replace the general principles it enshrines. This leaves a role for general principles in the incorporation of new and additional rights into the EU legal framework. Such an approach is necessary to ensure that the Charter achieves its aims in enhancing the visibility of the rights protected by EU law, while also providing the impetus for more coherent rights protection within the EU. What an extensive survey of CJEU case law in the field of non-discrimination shows, however, is that the CJEU has struggled to let its general principles case law go, potentially hampering the transformative potential of the Charter.

scholarly journals The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable

2020 ◽  
Vol 21 (3) ◽  
pp. 532-548
Author(s):  
Melanie Fink
Keyword(s):  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
International Courts ◽  
Liability Law ◽  
National Courts ◽  
Court Of Justice ◽  
Legal Accountability ◽  
Accountability Gap ◽  
The Eu

AbstractFrontex has become one of the major players in European external border management. As its powers and resources have increased, so have the challenges surrounding its compliance with fundamental rights. A major concern continues to be how to ensure legal accountability for fundamental rights violations that occur in the context of its activities. While Member States can be held accountable before their own national courts and before international courts, neither of these options are available in relation to Frontex. But it can be brought before the Court of Justice of the European Union to account for the conformity of its conduct with EU law. This Article explores the potential of the EU action for damages to offer a remedy for fundamental rights violations committed by Frontex. It identifies where public liability law falls short of providing a remedy for fundamental rights violations committed by EU bodies, explores the possibilities to close that gap, and assesses the implications this has for Frontex’s liability. The Article argues that the action for damages may be the means to close the accountability gap in the specific case of Frontex, but also more generally in circumstances where EU administration is delivered in the form of informal or factual conduct. If it is to fulfill that role, the CJEU would have to lower the threshold for EU liability where fundamental rights are concerned.

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